Split Portsmouth council backs controversial zoning amendment

PORTSMOUTH — The City Council by a 5-4 vote approved the second reading of a proposal introduced by Mayor Robert Lister to eliminate the city's controversial conditional-use permit.

Jeff McMenemy

PORTSMOUTH — The City Council by a 5-4 vote approved the second reading of a proposal introduced by Mayor Robert Lister to eliminate the city's controversial conditional-use permit.

Lister cast the deciding vote in support of the amendment. The four other councilors backing the amendment to repeal the conditional-use permit were Esther Kennedy, Zelita Morgan, Jack Thorsen and Assistant Mayor Jim Splaine.

Pointing to the image of 60-foot-tall buildings in the city's North End, Splaine asked, "Is that the kind of legacy we want to leave for the future?"

The council's vote came after residents packed the City Council chambers Monday night to speak, often passionately, for and against the proposal.

Local lawyer Paul McEachern argued against repealing the controversial zoning provision that allows developers who meet certain criteria to build in the downtown higher than 45 feet if they meet certain conditions.

"We have people telling us things are ugly because they're high, (but) for no other reason," McEachern said. "The height limit is a modern thing, and I submit it's arbitrary."

City resident Margaret O'Rourke reminded the council that during the last campaign season, voters had told them "enough already" about the pace of development in the downtown.

"It's time for a time out, a breather," O'Rourke said.

Resident Dick Bagley said that there has been "an awful lot of meetings and an awful lot of opinions" about the controversial conditional-use permit.

But he said it's up to the council to decide.

"What do you believe ... what do you think is right for the city of Portsmouth?" Bagley asked, while stating he supported eliminating the measure until the council could have "a dialogue" with the community.

HarborCorp developer Chris Thompson, who attended the City Council meeting Monday night, read parts of a five-page letter he wrote to councilors on the topic.

Among the arguments he made to the council was that HarborCorp could not move forward with its plans for a mixed-use development — including a Whole Foods Market, a conference center, 14 condominium units and "a small boutique hotel" — if conditional use is eliminated.

"We want the council to know that it is impossible for us to build this proposed project with its dynamic and integrated programming at a height of 45 feet," Thompson said. "It cannot be done."

He emphasized that meetings with city residents concerned about the scope of the project have made the situation better.

"We believe strongly that the economic and civic benefits of this multi-use development for Portsmouth are great and have the support of the majority of residents of Portsmouth," Thompson said.

Kim Rogers, owner of the Deer Street property where Gary's Beverages is located, argued against what he called "a blanket restriction on building heights," stating it would have a negative impact on development.

He noted that he is talking to city officials about possibly making the land a site for a second city garage.

Rogers also contended that new development brings "additional jobs to Portsmouth," and that city developers at times are being "punished ... for the indiscretions of other developers."

Although Rogers didn't mention them by name, many people who spoke for and against the repeal repeatedly brought up how Portwalk developers changed their plans for the third phase of the project without city permission.

Portsmouth lawyer Jerry Zelin spoke in support of repealing the conditional-use permit, saying that most people agree that development is needed "otherwise, our city will die."

But he argued in support of "development with some restraint."

Zelin contended that keeping the conditional-use permit in place would "sacrifice the North End and Islington Street ... just for the sake of HarborCorp."

Before Monday's meeting, Lister said he was hopeful city councilors would be able to reach a compromise on the amendment he initially offered, rather than just keeping it or repealing it.

The mayor initially proposed the amendment during a council meeting in January. He has said previously he offered the amendment after hearing repeatedly from city residents during the election campaign who said they were concerned with the pace of development and the height of new buildings.

That amendment came just four months after the previous council voted to amend the zoning ordinance to create an across-the-board height limit in the downtown, but gave the Historic District Commission the ability to approve taller buildings up to 60 feet high through the conditional-use permit.

The city's Planning Board, however, held a public hearing on Lister's proposed amendment Feb. 20 and voted 7-2 to keep the conditional-use permit, but that the criteria for approval be changed to meet "a total of four criteria," according to Planning Director Rick Taintor.

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